ICBC Law

Reasons for judgment were released today involving a tragic BC Pedestrian/Truck Crash addressing an injured Plaintiff’s entitlement to “no-fault” accident benefits.

In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was outside of the vehicle (which was hauling a trailer) she was riding in for the purpose of putting chains on it.  While doing so she was struck by a tractor-trailer unit and suffered catastrophic injuries.  Her vehicle and the various trailers of the vehicles involved were insured with different companies.  The Plaintiff applied for ‘no-fault‘ accident benefits to all of the insurers and they all refused payment because they could not agree which of them was responsible for paying the benefits.

The obligation for ICBC to pay no-fault benefits turns in part on whether a person is “insured“.  The definition of an “insured” is contained in s. 78 of the Insurance (Vehicle) Regulation and includes “an occupant of a vehicle that is licenced in the Province…” and “a pedestrian who collides with a vehicle described in an owner’s certificate” The determination of which insurer was ultimately responsible to pay the Plaintiff her benefits turned on whether she was an “occupant” of her vehicle at the time of this accident or a “pedestrian“.

Mr. Justice Myers held that the Plaintiff was a “pedestrian” and in so doing made the following observations with respect to the test for being an “occupant“:

[16]    The Regulation defines occupant, but does not define pedestrian.  Occupant is defined in s. 1(1) as follows:

“occupant” means a person operating or riding in a vehicle or camper and includes

(a)        a person entering or alighting from a vehicle or camper, and

(b)        a person, other than a garage service operator or an employee of a garage service operator, who is working, or whose dependant is working, in or on a vehicle or camper owned by that person;

[17]    There are a large number of cases which have addressed this issue in factual situations similar or analogous to the case at bar.  For example, in Kyriazis v. Royal Insurance Co. of Canada (1991), 82 D.L.R. (4th) 691 (Ont. Gen. Div.), affirmed (1993), 107 D.L.R. (4th) 288 (C.A.), the plaintiff pulled his car over to clean the snow off its windshield. Abbey J. held that he was not an occupant.  In doing so, Abbey J. rejected a line of authority – primarily from the United States – which applied what was referred to as a “zone of connection test”.  That test regarded the intent of the injured person as a significant determining factor of whether he or she was an occupant when not inside the vehicle.  Abbey J. focussed on the definition of occupant contained in the insurance policy before him, which was virtually identical to that in the Regulation.  He stated:

The word “occupant” is defined by reference to various physical activities or processes.  An “occupant” is a person who is driving an automobile, being carried in or upon an automobile, entering or getting onto an automobile or alighting from an automobile.  The plain meaning of the words used, it seems to me, suggests an intention to draw the line between an occupant and a non-occupant at the point that an individual, who is not driving, can no longer be said to be either entering or getting on to an automobile or, alternatively, alighting from an automobile…

[22]    However, the definition of “occupant” in the Regulation, and the definition in the policies involved in the other cases I have cited above, do in fact refer to the activity of driving, or getting in or out of a vehicle.  On that basis, I do not see a reason for departing from the approach in Kyriazis and the other cases I have cited above.

[23]    Ms. Schuk was not operating or riding in the vehicle, entering into it, nor alighting from it at the time of the accident.  Although the purpose of pulling over and getting out the vehicle was to put chains on it, the parties are in accord that Ms. Schuk was not actually working on the vehicle at the time of the collision.  Therefore none of the criteria for an occupant contained in the definition are met and she was not an occupant.

[24]    Pedestrian is not defined.  However, that was also so in most of the cases I cited above at para. 18.  The approach taken in those cases is that for the purposes of the scheme of automobile insurance, a victim of a car accident is either an occupant or a pedestrian; in other words if the victim does not fall within the definition of a passenger, then she is an occupant.  That appears to me to be the case with the legislation and regulation in issue in the case at bar.  Accordingly Ms. Schuk was a pedestrian at the time of the accident.

[25]    Ms. Shuk was therefore an insured for the purpose of no-fault benefits under both MPIC and ICBC coverage.

Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.

In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash.  Liability (fault) for the crash was admitted by the Defendant.  The Plaintiff’s non-pecuniary damages were valued at $50,000.  In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine.  Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“.  Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.

The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.

At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.

Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“.   He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.

Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:

[40]    This left a subset of approximately 69 photographs.  These showed Ms. Mayenburg doing things such as hiking, dancing, or bending.  However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them.  Rather, she said she would feel the consequences afterwards.

[41]    In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident.  That was not the evidence of Ms. Mayenburg.

[42]    As indicated above, I accept the conclusions of Dr. Apel.  That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand.  Her damages must be assessed on that basis.

[43]    In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000.  I find that to be a suitable award in this case.

The Defence also tried  to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain”  Mr. Justice Myers quickly disposed of this argument noting

[37]    I do not accept those submissions, which have been made and rejected in several other cases:  see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63.  Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation.  Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time.  Dr. Ducholke testified how her time with patients was limited.

[38]    In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.

In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault.  The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).

Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash.  Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain.  Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39]    I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains.  Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29.  Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40]    Ms. Cheng was suffering from headaches prior to the accident in question.  While she says they are more frequent now, the difference is minimal.  Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41]    That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome.  Causation for the exacerbation and chronic pain syndrome has been shown.  The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition.  To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42]    Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43]    Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000.  The defendants’ cases ranged from $35,000 to $60,000.

[44]    The injuries will not result in a drastic change of lifestyle for Ms. Cheng.  As I have noted, she was not physically active before the accident.  None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident.  The same can be said with respect to going to the theatre.  The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45]    On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46]    In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.